Augenblick v. United States, No. 357-64.

• Court: Court of Federal Claims
• Writing for the Court: COWEN, , and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS
• Citation: 377 F.2d 586,180 Ct. Cl. 131
• Parties: Richard G. AUGENBLICK v. The UNITED STATES.
• Decision Date: 12 May 1967
• Docket Number: No. 357-64.

180 Ct. Cl. 131, 377 F.2d 586 (1967)

Richard G. AUGENBLICK
v.
The UNITED STATES.

No. 357-64.

United States Court of Claims.

May 12, 1967.

377 F.2d 587

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377 F.2d 588

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377 F.2d 589

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377 F.2d 590

Joseph H. Sharlitt, Washington, D. C., attorney of record, for plaintiff, Donald H. Green, Fisher, Sharlitt, Gelband & Green, Washington, D. C., of counsel

Edgar H. Twine, Washington, D. C., with whom was Asst. Atty. Gen. Barefoot Sanders, for defendant, Isaac D. Benkin, Washington, D. C., of counsel.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

DAVIS, Judge:

Our plaintiff is a career Navy commander, most recently on duty with the Department of Defense, who was dismissed from the service, with total forfeitures, by order of a Navy court-martial. Claiming that the conviction violated certain of his constitutional rights, he sues for back-pay and asks us to hold his dismissal invalid. The charge against him was sodomy with an enlisted airman, in violation of Article 125 of the Uniform Code of Military Justice, but the conviction was for the lesser included offense of committing an indecent, lewd, and lascivious act (under Article 134). The only sentence was dismissal and forfeiture of pay. Both sides have moved for summary judgment on the basis of the record in the military proceedings. We take the facts underlying the conviction as they were given by the Navy Board of Review in affirming the court-martial. Our problem concerns, not the weight or substantiality of the evidence, but alleged procedural defects said to constitute an invasion of the protection agains double jeopardy and a denial of due process.

On January 11, 1961, Commander Augenblick, after having attended an office party where he had drinks of scotch with little water, proceeded to his home in Arlington, Virginia. Not feeling like turning in, he changed to civilian dress and went to a bar and an officers' club in Virginia before going to Washington where he also visited a bar. At each stop he had some beer. Becoming extremely tired and desiring a cup of coffee before returning home to Arlington, he entered a "White Tower" restaurant. While at the restaurant, he met Airman Hodges who was waiting for a bus which would return him to his base in nearby Maryland. It is not clear from the record who initiated the conversation, but it resulted in the accused's and the airman's taking a ride in the former's automobile. After driving about fifteen minutes, the accused parked the automobile in the vicinity of the West Potomac Basin in the District of Columbia, near the Potomac River, where they were apprehended by two Metropolitan Police Officers, taken to the Third Precinct, charged with disorderly conduct, and delivered over to military police.

The accused testified in his own behalf that he was driving toward the Fourteenth Street Bridge (over the Potomac River from the District of Columbia to Virginia); that he was very, very sleepy and felt that it was unsafe to drive and therefore stopped in the area mentioned and went to sleep; that the next thing he remembers is the glow from the flashlight of one of the arresting officers. Airman Hodges, who was in full military uniform at the time of the arrest, testified for the prosecution that Augenblick first informed him that he had his uncle's car and that they could go to his uncle's home for some rest; that refusing this offer, the airman went for a ride with the hope of being returned to his base. Hodges stated that, upon parking the automobile, the accused first reclined against his door; after a few minutes, he asked whether he could lay his head in Hodges' lap and after certain preliminaries the accused performed an act of oral sodomy. The arresting police officers testified that they noted the accused's head disappear from the driver's side of the vehicle and upon inspection found his face very close to the exposed privates of the airman. The court-martial

377 F.2d 591

found Augenblick not guilty of sodomy but guilty of committing an indecent, lewd, and lascivious act by willfully and knowingly placing his head in Hodges' lap with his face in close proximity to the latter's exposed privates

The sentence of dismissal and forfeiture was approved by the convening authority, and the Board of Review (with one of its three members dissenting) affirmed. The Court of Military Appeals denied petitioner's request for review, and the Secretary of the Navy declined further review under Article 71 of the Uniform Code.

In this court plaintiff's claim is bottomed on two constitutional arguments. First, he asserts that his right not to be twice put in jeopardy was violated when his first court-martial was terminated and he was subsequently tried and convicted by a second court-martial. Second, he insists that rulings of the law officer at the trial and of the Board of Review, concerning the production of evidence relating to Hodges' early-morning interrogation at the Naval Weapons Plant in Washington, abridged his right to due process.

I

Here, as in prior back-pay cases involving court-martial proceedings, the defendant tells us that we have no jurisdiction to scrutinize the conviction. Rejecting a similar claim, we recently said that "our opinions have consistently stated or assumed that denial of significant constitutional rights would render the military conviction invalid, and permit this court to award back-pay." Shaw v. United States, 357 F.2d 949, 953, 174 Ct.Cl. 899, 904 (1966). It is argued that this position disregards Article 76 of the Uniform Code (and its predecessor, Article 50(h) of the 1948 Articles of War) providing that court-martial determinations "are final and conclusive" and "are binding upon all departments, courts, agencies, and officers of the United States * * *" (emphasis added).¹ The legislative history demonstrates conclusively that this section, despite the breadth of its wording, was not intended to do away with review by habeas corpus (S.Rep.No. 486, 81st Cong., 1st Sess. 32 (1949); H.R.Rep.No. 491, 81st Cong., 1st Sess. 35 (1949)), and the Supreme Court has twice held that military "finality" provisions of this type do not cut off review by habeas corpus. Gusik v. Schilder, 340 U.S. 128, 132-133, 71 S.Ct. 149, 95 L.Ed. 146 (1950); Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953) (opinion of Chief Justice Vinson).² Defendant takes strictly and literally this specific reference to habeas corpus and denies that any other

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type of collateral review is available. But it seems clear that habeas corpus was mentioned because it is the primary mode of relief for confined prisoners, who historically form the bulk of those attacking court-martial convictions. For persons like plaintiff who are not in jail, habeas corpus is no remedy at all, and other avenues have long been open to redress their wrongs. In Gusik v. Schilder, supra, 340 U.S. at 133 n. 3, 71 S.Ct. at 152, the Court observed that "collateral attack of a judgment of a court-martial was early entertained", expressly citing civil actions for trespass, replevin, and assault, battery, and false imprisonment. During at least the past eighty years this court has entertained suits by military personnel claiming that their court-martial convictions were void. See, e. g., Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887); Fletcher v. United States, 26 Ct.Cl. 541 (1891), rev'd on the merits, 148 U.S. 84, 13 S.Ct. 552, 37 L.Ed. 378 (1893); Swaim v. United States, 28 Ct.Ct. 173, 217 (1893), aff'd, Swaim v. U. S., 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823 (1897). This form of collateral review was long ago established firmly — although in the earlier days, of course, "jurisdiction" was interpreted narrowly. As the concept of "jurisdiction" has expanded (see, e. g., Johnston v. Zerbst, 304 U.S. 458 (1938)), this court has naturally kept pace. See Shaw v. United States, supra, 357 F.2d at 953-954, 174 Ct.Cl. at 903-906. The wider power of review has only been exercised for the last generation. There has, however, been an unbroken continuity, going back to the 19th century, in the position that a void court-martial conviction can be attacked through a suit for back-pay in this court. In one of his opinions in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508, 346 U.S. 844, 847-848, 74 S.Ct. 3, 5, 98 L.Ed. 363 (1953), Mr. Justice Frankfurter referred to the broadened concept of "jurisdiction" reflected in a series of then-recent court-martial cases in the Court of Claims with the significant observation, "where of course collateral attack is by way of a petition for back pay resting on allegations that the assailed court-martial proceedings were void."

There is no adequate reason for looking to habeas corpus alone, or for thinking that Congress limited its exception from "finality" to that specific proceeding. Liberty is of course important, but so are a man's career,³ his livelihood, his rights as a veteran, his status as a convicted criminal, and his reputation. To deny collateral attack to one not in confinement — the consequence of saying that habeas corpus is the only remedy — would be to deny the possibility of review by a constitutional court, and ultimately by the Supreme Court, of the constitutional claims of servicemen like plaintiff who have not been sentenced to jail or who have been released. See Gallagher v. Quinn, 124 U.S.App.D.C. 172, 363 F.2d 301, 303-304 (1966), cert. denied, 385 U.S. 881, 87 S.Ct. 167, 17 L.Ed.2d 108. On these grounds, the District of Columbia Circuit recently upheld, in Gallagher, the right to seek a mandatory injunction and declaratory relief testing a court-martial conviction, and the First Circuit has sustained an...